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Valley Air Service v. Southaire

November 6, 2009


The opinion of the court was delivered by: Blanche M. Manning United States District Judge


The court previously issued a rule to show cause directed at attorneys Joseph Marconi and Victor Pioli of Johnson & Bell's Chicago office. It now takes this opportunity to state the obvious: zealous advocacy is not without boundaries. For the following reasons, the court finds that counsel acted inappropriately but nevertheless discharges the rule to show cause. It trusts that counsel will strictly abide by the court's orders in the future. If not, the court will not hesitate to initiate disciplinary proceedings against counsel, who may also be required to personally pay for fees and expenses of opposing counsel flowing from defense counsel's misconduct.


The court's October 2, 2009, rule to show cause order stated that:

On September 15, 2009, the court issued an order which granted Valley Air's motion for post-trial relief and stated, among other things, "the court has issued an expedited referral for a settlement conference." More than two weeks have passed and no date has been set. Counsel for Valley Air has advised the court that it has been unable to contact defendants' counsel (Joseph Marconi and Victor Pioli of Johnson & Bell) by telephone, mail, fax, or email, and thus could not comply with the court's September 15th order. The court's orders are not discretionary, to be ignored by counsel as they deem fit. Accordingly, Mr. Marconi and Mr. Pioli are each ordered to show cause, by October 9, 2009, why they should not be sanctioned for their failure to comply with the court's September 15, 2009, order and for unreasonably and vexatiously multiplying the proceedings. The clerk is further ordered to send a copy of this order to William Johnson, President/Shareholder of Johnson & Bell, via email ( and first class mail (Johnson & Bell, 33 West Monroe Street, Suite 2700, Chicago, Illinois 60603).

Docket No. 367 (order dated October 2, 2009).

Defense counsels' response to the rule to show cause is before the court. Based on the allegations in the response, the court gave Valley Air's counsel the opportunity to file a brief memorandum, but they declined to do so.

The rule to show cause asked defendants' counsel to attempt to justify why they did not contact the magistrate judge's deputy clerk in concert with plaintiff's counsel to set up a date for a settlement conference, despite an express court order requiring them to do so. It also noted that this incident was not isolated, but instead was illustrative of a continuing problem in this case. Counsels' response to the rule to show cause, in essence, attempts to cast blame on everyone but themselves.

! First, they dredge up a past discovery dispute that has absolutely no bearing on the issue presently before the court.

! Second, they attempt to analogize the present situation to their past failure to work with plaintiff's counsel to submit a draft pretrial order, and suggest that in both instances, plaintiff's counsel was at fault. The court strongly disagrees. Its previous rejection of defense counsel's identical argument with respect to the pretrial order is equally applicable to the present argument:

On April 30, 3009, the court ordered the parties to submit a pretrial order by June 24, 2009. On June 24, 2009, the plaintiff filed a pretrial order signed by the plaintiff only. According to the plaintiff, its counsel experienced difficulties reaching defendants' counsel to finalize the pretrial order. The court need not delve into this apparent further dispute between counsel. If the court's assistance was necessary to resolve any issues regarding the pretrial order, it should have been sought prior to the pretrial order's due date. Due dates, especially ones set in a fast-approaching trial where the pretrial conference is one week away, are not discretionary. Because the date for filing the pretrial order has passed, the court will proceed based on the pretrial order presently before the court.

See Docket No. 287 (order dated Jun. 25, 2009). If defense counsel believes opposing counsel is preventing them from complying with dates set by the court, it is their responsibility to bring it promptly to the court's attention. Simply ignoring the situation is playing with fire, and is not a "get out of jail free" card that entitles them to proceed as they wish.

! Third, defendants' counsel expresses their belief that the prior settlement conference was "a complete waste of everyone's time" because the plaintiff made a "ridiculous demand." Response to Rule to Show Cause at ¶ 6. The tone of this response is regrettable (and, unfortunately, not an isolated incident). The reasoning is also flawed. Counsel appears to believe that they are not required to participate in another settlement conference, despite the court's express order, because it would (in counsels' eyes) be "a complete waste of everyone's time."

This contention is, like the one above, reminiscent of the situation with the pretrial order. After the court ruled that it would proceed based on Valley Air's pretrial order, during the trial, defendants' counsel repeatedly attempted to reargue issues that were already definitively resolved due to the court's acceptance of the plaintiff's pretrial order. Contrary to Mr. Marconi and Mr. ...

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